Tomato Paste Manufacturing Industry
16 CFR Part 133 · Trade practice rules · in the Code of Federal Regulations 1938-1976 (13 annual editions)
Scanned CFR pages, OCR text may contain errors; the linked Library of Congress PDF is the authority. Not legal advice; not affiliated with the FTC. These rules and guides are historical: most were rescinded or replaced, so do not assume any is in force.
Latest edition: Library of Congress, 1976 CFR · Earliest edition: 1938 CFR
Text (1976 edition, OCR)
Chapter |—Federal Trade Commission tion Act “is not applicable to Govern- ment contracts for supplies.” (38 Opin- ions, Attorney General 539) Note: This section is based on the provi- sions of section 2 of the Clayton Act as amended by the Roblnson-Patman Act, (2) Subsection (b) of section 2 of the Clayton Act as amended, which reads as follows, is in amplification of the note to subparagraph (5) of paragraph (a) of this section and of the note to paragraph (d) of this section. Upon proof being made, at any hearing on a complaint under this section, that there has been discrlmination in price or services or facillties furnished, the burden of rebut- ting the prima facie case thus made by show- ing justification shall be upon the person charged with a violation of this section, and unless justification shall be affirmatively shown, the Commission is authorized to Is- sue an order terminating the discrimination: Provided, however, That nothing herein con- tained shall prevent a seller rebutting the prima facie case thus made by showing that his lower price or the furnishing of services or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitor. § 132.14 Commercial bribery. It is an unfair trade practice for any industry member, directly or indirectly, to give, or offer to give, or permit or cause to be given, money or anything of value to agents, employees, or represent- atives of customers or prospective cus- tomers, or to agents, employees, or rep- resentatives of competitors’ customers or prospective customers, without the knowledge of their employers or prin- cipals, as an inducement to influence their employers or principals to purchase or contract to purchase products manu- factured or sold by such industry mem- ber or the maker of such gift or offer, or to influence such employers of prin- cipals to refrain from dealing in the products of competitors or from dealing or contracting to deal with competitors, or to effect any other advantage in favor of the industry member making such gift or offer with respect to the sale of industry products to such employers or principals. § 132.15 Exclusive deals. It is an unfair trade practice for any member of the industry engaged in com- merce,’ in the course of such commerce, 2 See footnote to § 132.13 on page 582. 58—063—76-——-38 § 132.201 to lease or make a sale or contract for sale of any industry product, for use, consumption, or resale within any place ‘under the jurisdiction of the Unlted States, or fix a price charged therefor, or discount from, or rebate upon, such price, on the condition, agreement, or understanding that the lessee or pur- chaser thereof shall not use or deal in the goods of a competitor or competitors of the lessor or seller, where the effect of such lease, sale, or contract for sale, or such condition, agreement, or under- standing, may be to substantially lessen competition or tend to create a monopoly in any line of commerce. COMMITTEE ON TRADE PRACTICES § 132.201 Industry committee. The provisions of § 16.1 of this sub- chapter shall be applicable to an indus- try committee established under this part. PART 133—TOMATO PASTE MANU- FACTURING INDUSTRY Group I Sec. 133.1 Misrepresentation of industry prod- ucts. 133.2 Specifications for tomato paste. 133.3. Misrepresentation as to tomato paste. 133.4 Misrepresentation as to artificial color. 133.5 Misrepresentation as to tomato con- tent of product. 133.6 Deceptive deplctlons, 133.7 Defamation of competitors and dis- paragement of their products. 133.8 Substituting inferior products for those ordered. 133.9 Commercial bribery. 133.10 Inducing breach of contract. 133.11 Enticing away employees of com- petitors. 133.12 Selling below cost. 133.18 Discrimination. 183.14 Misrepresentation as to basil, etc. Group IT 133.101 Disclosure of sollds content. 133.102 Repudtation of contracts. 133.103 Fake or fictitious bids. 133.104 Truthful disclosure of quality of products. 133.105 Dissemination of credit Information. AvutrHoritTr: Secs. 6(g), 5, 38 Stat. 722, 719; 15 U.S.C. 46(g), 45, unless otherwise noted. Source: 3 FR 2155, Sept. 3, 1938, unless otherwise noted. 585 § 133.1 Group I § 133.1 Misrepresentation of industry products. The practice of selling, packing, ad- vertising, or representing tomato paste or related products, or any simulation or imitation thereof, in a manner which is calculated to mislead or deceive or has the tendency and capacity or effect of misleading or deceiving purchasers, prospective purchasers, or the consum- ing public with respect to the character, nature, content, grade, quality, quantity, origin, substance, material, preparation, or manufacture of such products, or in any other material respect, is an unfair trade practice. § 133.2 Specifications for tomato paste. For the purpose of and as used in this part: (a) Tomato paste (Salsa di Pomodoro, “Salsa’”) is understood to be the product resulting from the concentration of the screened or strained fleshy and liquid portions of ripe tomatoes, except those portions from skin and core trimmings; with or without the addition of salt, and with or without the addition of basil leaf. The finished product shall contain not less than 22 percent of tomato solids. (b) Should such minimum of 22 per- cent tomato solids hereafter be raised to a higher percentage or proportion by ap- plicable provisions of law or by rules or regulations in pursuance thereof, then such higher percentage so fixed shall be considered the minimum under this part, in lieu of such 22 percent specified in paragraph (a) of this section. (c) Heavy tomato paste (“Concen- trato”) is understood to be tomato paste containing not less than 33 percent of tomato solids. (d) It is an unfair trade practice for any member of the industry or other seller to cause the concentration or con- tent of his tomato paste to be misrepre- sented, or by any other means to repre- sent, directly or indirectly, that the prod- uct is of a certain concentration of 22 percent or more tomato solids when such is not true in fact. § 133.3 Misrepresentation as to tomato paste. . It is an unfair trade practice to sell, offer for sale, advertise, describe, or oth- erwise represent directly or indirectly, any product as being tomato paste (Salsa Title 16—Commercial Practices di Pomodoro, “Salsa”), heavy tomato paste (“Concentrato”), or other similar tomato paste product, when such prod- - uct does not conform to the specifications set forth in § 133.2. § 133.4. Misrepresentation as to artificial color. It is an unfair trade practice to sell, offer for sale, advertise, or otherwise rep- resent, directly or indirectly, any product of the industry containing added arti- ficial color without then and there mak- ing full and nondeceptive disclosure of the presence of such added artificial color. The use of any coloring matter what- soever shall not be permitted when the same is introduced for the purpose or with the effect of concealing or masking damage or inferiority, or of adulterat- ing the product or rendering the same deleterious. § 133.5 Misrepresentation as to tomato content of product. . It is an unfair trade practice to sell, offer for sale, advertise, describe, or oth- erwise represent, directly or indirectly, any product of the industry as contain- ing a higher tomato solids content than is actually the case. § 133.6 Deceptive depictions. The use of photographs, cuts, engrav- ings, illustrations, or pictorial or other depictions, or devices, of industry prod- ucts, in catalogues, sales literature, ad- vertisements, or other representations, in sucli manner as to have a capacity and tendency or effect of misleading or de- ceiving the purchasing or consuming public as to the origin, manufacture, grade, quality, quantity, size, composi- tion, material, coloring, or content of any products of the industry, or ingredient thereof, or in any other material respect, is an unfair trade practice. § 133.7 Defamation of competitors and disparagement of their products. The defamation of competitors by falsely imputing to them dishonorable conduct, inability to perform contracts, questionable credit standing, or by other false representations, or the false dis- paragement of the grade, quality, or manufacture of the products of competi- tors, or of their business methods, selling prices, values, credit terms, policies, or services, is an unfair trade practice. 586 Chapter |—Federal Trade Commission § 133.8 Substituting inferior products for those ordered. The practice of using or substituting any product of the industry inferior in grade or quality to that specified by the purchaser, without the consent of said purchaser to such use or substitution, or with the tendency, capacity, or effect of otherwise misleading or deceiving pur- chasers, prospective purchasers, or the consuming public, is an unfair trade practice. § 133.9 Commercial bribery. Directly or indirectly to give, or permit to be given, or offer to give, money or anything of value to agents, employees, representatives of customers or prospec- tive customers, or to agents, employees, or representatives of competitors’ cus- tomers, without the knowledge of their employers or principals, as an induce- ment to influence their employers or principals to purchase or contract to pur- chase industry products from the maker of such gift or offer, or to infiuence such employers or principals to refrain from dealing or contracting to deal with com- petitors, is an unfair trade practice. § 133.10 Inducing breach of contract. Knowingly inducing or attempting to induct the breach of existing lawful contracts between competitors and their customers or their suppliers by any false or deceptive means whatsoever, or know- ingly interfering with or obstructing the performance of any such contractual duties or services of any such means, with the purpose and effect of unduly hamper- ing, injuring, or prejudicing competitors in their businesses, is an unfair trade practice. § 133.11 Enticing away employees of competitors. Willfully enticing away the employees of competitors with the purpose and ef- fect of unduly hampering, injuring, or prejudicing competitors in their busi- nesses, is an unfair trade practice. § 133.12 Selling below cost. The practice of selling industry prod- ucts below the seller’s cost with the in- tent and with the effect of injuring a competitor and where the effect may be substantially to lessen competition or tend to create a monopoly or unreason- ably restrain trade is an unfair trade practice; all elements recognized by good § 133.13 accounting practice as proper elements of such cost shall be included in deter- mining cost under this section. § 133.13 Discrimination. (a) Prohibited discriminatory prices, or rebates, refunds, discounts, credits, etc., which effect unlawful price discrim- ination. It is an unfair trade practice for any member of the industry engaged in commerce, in the course of such com- merce, to grant or allow, secretly or openly, directly or indirectly, any rebate, refund, discount, credit, or other form of price differential, where such rebate, refund, discount, credit, or other form of price differential effects a discrimina- tion in price between different purchasers of goods of like grade and quality, where either or any of the purchasers involved therein are in commerce, and where the effect thereof may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination or with customers of either of them: Provided, however, (1) That the goods involved in any such transaction are sold for use, consump- tion, or resale with any place under the jurisdiction of the United States; (2) That nothing contained im this section shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale, or de- livery resulting from the differing meth- ods or quantities in which such commo- dities are to such purchasers sold or delivered; (3) That nothing contained in this section shall prevent persons engaged in selling goods, wares, or merchandise in commerce from selecting their own cus- toiners in bona fide transactions and not in restraint of trade; (4) That nothing contained in this section shall prevent price changes from time to time where made in response to changing conditions affecting either (i) the market for the goods concerned, or (ii) the marketability of the goods, such as, but not limited to, actual or im- minent deterioration of perishable goods, obsolescence of seasonal goods, distress sales under court process, or sales in 2 Paragraph (a) of § 133.13 shall not be construed as embracing practices prohibited by paragraphs (b), (c), and ,(da), of this section. 587 § 133.14 good faith in discontinuance of business in the goods concerned. (b) Prohibited brokerage and com- missions. It is an unfair trade practice for any member of the industry engaged in cominerce, in the course of such com- merce, to pay or grant, or to receive or accept, anything of value as a commis- sion, brokerage, or other compensation, or any allowance or discount in lieu thereof, except for services rendered in connection with the sale or purchase of goods, wares, or merchandise, either to the other party to such transaction or to an agent, representative, or other mter- mediary therein where such intermedi- ary is acting in fact for or in behalf, or is subject to the direct or indirect con- trol, of any party to such transaction other than the person by whom such compensation is so granted or paid. (c) Prohibited advertising or promo- tional allowances, etc. It is an unfair trade practice for any member of the industry engaged in commerce to pay or contract for the payment or adver- tising or promotional allowances or any other thing of value to or for the bene- fit of a customer of such member in the course of such commerce as compensa- tion or in consideration for any services or facilities furnished by or through such customer in connection with the processing, handling, sale, or offering for sale of any products or commodities manufactured, sold, or offered for sale by such member, unless such payment or consideration is available on proportion- ally equal terms to all other customers competing in the distribution of such products or cominodities. (d) Prohibited discriminatory services or facilities. It is an unfair trade prac- tice for any member of the industry en- gaged in commerce to discriminate in favor of one purchaser against another purchaser or purchasers of a commodity bought for resale, with or without proc- essing, by contracting to furnish or by furnishing, or by contributing to the furnishing of any services or facilitles connected with the processmg, handling, sale, or offering for sale of such com- modity so purchased upon terms not ac- corded to all purchasers on proportion- ally equal terms. (e) Illegal price discrimination. It is an unfair trade practice for any mem- ber of the industry or other person en- gaged in commerce, in the course of such commerce, to discriminate in price in any other respect contrary to section 2 of Title 16—Commercial Practices the Clayton Act as amended by the act of Congress approved June 19, 1936 (49 Stat. 1526-8; (15 U.S.C. 13-13b, 21a)), or knowingly to induce or receive a dis- crimination in price which is prohibited by such section as amended. (Sec. 2, 38 Stat. 780, as amended, secs. 2, 3, 4, 49 Stat. 1527, 1528; 15 U.S.C. 13, 18a, 13b, 21a) § 133.14 Misrepresentation as to basil, etc. It is an unfair trade practice to cause any tomato paste or reiated product to be represented, directly or indirectly, as containing basil leaf or any other m- gredient when such is not true in fact; or when such basil leaf or other specified megredient has been omitted in packing from various or sundry cans of the prod- uct so represented. Group It § 133.101 Disclosure of solids content. The practice, by each member of the industry, of making clear and nondecep- tive disclosure to the purchasing public of the percentage or proportion of tomato solids present in his product, thereby disclosing whether his tomato paste contains only the maximum per- centage of tomato solids or some higher percentage, is recommended as a proper and desirable practice to foilow in the interest of affording consumers and other purchasers correct information as to the concentration of the product, and of avoiding confusion, deception and misrepresentatlon in respect thereto. § 133.102 Repudiation of contracts. Lawful contracts are business obliga- tions which should be performed in letter and in spirit. The repudiation of con- tracts by sellers on a rising market or by buyers on a declining market is con- demned by the industry. § 133.103 Fake or fictitious bids. The industry condemns fake or ficti- tious bids made for the purpose of de- ceiving competitors and securing undue advantage. If plans and specifications are changed and new bids called for after the original bids have been submitted and opened, the same fairness should obtain as with the original bid. § 133.104 Truthful diselosure of quality of products. In the interest of consumer protection, the industry records itself as favoring, 588 Chapter I|—Federal and recommends, the practice of mem- bers making fair and truthful disclosure, in their advertising, labeling, sales lit- erature, and other selling representa-~ tions of the quality and content of their products. § 133.105 Dissemination of credit in- formation. The industry records its approval of distributing information covering delin- quent and slow accounts insofar as it may be lawfully done. PART 134—OLEOMARGARINE MAN- UFACTURING INDUSTRY Group I Sec. 184.1 Misrepresentation of industry prod- ucts. 184.2 Misbranding. 184.3 Substitution of products not con- forming to specifications. 184.4 Misrepresentation as to milk content. 185.6 Misrepresentation as to fat content. 134.6 Compliance with State and Federal . spectfication requirements. 134.7. Commercial bribery. 134.8 Unlawful interference with raw ma- terlal purchases. 1384.9 Defamation of competitors and dis- paragement of their products. 184.10 False invoicing. 134.11 Inducing breach of contract. 184.12 Enticing away employees of competi- Ts. 134.18 Consignment selling. 184.14 Publication or circulation of false or misleading price quotations, etc. 284.15 Selling below cost. 134.16 “Loss leaders.” «34.17 Discrimination. Group II 184.101 Cost records, 184.102 Repudiation of contracts. 134.103 Promotion of use of American agri- cultural products. AUTHORITY: Secs. 6(g), 5, 88 Stat. 722, 719; 15 U.S.C. 46(g), 45, unless otherwise noted. Source: 3 FR 28238, Sept. 28, 1938, unless otherwise noted. Group I § 134.1 Misrepresentation of industry products. It ts an unfair trade practice to make or publish, or cause to be made or pub- lished, directly or indirectly, any false, misieading or deceptive statement or representation, by way of advertisement or otherwise, concerning the grade, qual- Trade Commission § 134.6 ity, quantity, use, material, content, origin, nutritive value, preparation, man- ufacture, or distribution of oleomarga- rine, or in any other material respect. § 134.2 Misbranding. The false or deceptive marking or branding of oleomargarine with any word, phrase, name, trade-mark, labei, picture, design, device, or other represen- tation, with respect to the grade, quality, quantity, use, content, origin, prepara- ‘ tion, manufacture, or distribution of such oleomargarine, or, in any other matertal respect, is an unfair trade practice. § 134.3 Substitution of products not conforming to specifications. The substitution and delivery to cus- tomers, without the consent of the pur- chaser, of eleomargarine which does not conform to formula specifications, sam- ples, or representations upon which the purchase order is based; or the substitu- tion or delivery, with or without the con- sent to the purchaser, of oleomargarine which does not conform to applicable Federal or State laws or regulations; with the purpose or with the tendency and capacity or effect of misleading, the purchasing or consuming public, is an unfair trade practice. § 134.4 Misrepresentation as to milk content. Falsely representing, directly or in- directly, through advertising or other- wise, that any type of oleomargarine contains milk when, in fact, the cream or any other food content has been ex- tracted therefrom, for the purpose or with the tendency, capacity or effect of misleading or deceiving purchasers, propective purchasers, or the consuming pubiic, is an unfair trade practice. § 134.5 Misrepresentation as to fat cou- tent. It is an unfair trade practice for any member of the industry to sell, or offer for sale through advertising or otherwise, any oleomargarine the fact content of which is less than that specified in ap- plicable regulations, duly promulgated by authority of law, for the purpose, or with the tendency, capacity or effect of misleading or deceiving purchasers, pro- spective purchasers, or the consuming public. § 134.6 Compliance with State and Fed- eral specification requirements. It is an unfair trade practice to sell or distribute, or cause to be sold or dlstrib- 589